COP27 and beyond: Financing Loss and Damage from Climate Change
Katharina Theil, solicitor and trainee Sarah Gibbons, in the international team, discuss the calls to provide financial assistance to address loss and damage, a key agenda item in the UN Climate Change Conference in Egypt, as well as other legal routes in the fight for climate justice.
Posted on 07 November 2022
COP27: this year’s agenda
- At COP26, small island states, including Antigua and Barbuda and Tuvalu, agreed to join efforts to compel wealthy states to take concrete actions on climate change by legal means. As part of this Agreement, they established a newly formed Commission of Small Island States on Climate Change and International Law, whose mandate includes “the obligations of States relating to the protection and preservation of the marine environment, and their responsibility for injuries arising from internationally wrongful acts in respect of the breach of such obligations”. In February 2022, it was reported that the Commission convened to discuss legal action against “major carbon-emitting countries”.
- Vanuatu has announced an initiative to seek legal advice (a so-called advisory opinion) from the International Court of Justice (ICJ) to clarify the legal obligations of signatories to the Paris Agreement in the fight against climate change. Although such legal advice would not be binding on states, it could send a message to rich countries and be used internationally and domestically as an advocacy tool. It has also been suggested that a concretisation of the relevant international legal obligations would create benchmarks against which states’ conduct could be measured, and could assist judges domestically when dealing with climate cases. However, Vanuatu will need the UN General Assembly (UN GA) for such advice to be requested and it is unclear whether a majority is politically feasible. In addition, as one commentator remarks, L&D is a controversial topic in the UN GA, so it seems unlikely that L&D would be part of the request.
- Finally, although still fraught with difficulties, an avenue of growing importance under the lens of L&D is legal action by individuals from vulnerable nations or communities against major emitting states and corporations. A ground-breaking decision was delivered by the UN Human Rights Committee in the Torres Strait Islanders’ case against Australia in September 2022. The Committee found that Australia had violated the rights of the claimants and “asked Australia to compensate the indigenous Islanders for the harm suffered, engage in meaningful consultations with their communities to assess their needs, and take measures to continue to secure the communities’ safe existence on their respective islands”. Australia has 180 days from the date of the decision to report on its actions to give effect to the decision, although the Committee’s powers in case of non-compliance are limited. The case of Lliuya v RWE, brought in the German courts, is the most prominent example of case by an induvial from the Global South against a Global North corporation. The Peruvian farmer is claiming a share of the cost of a flood protection to prevent harm to his property from a nearby glacial lake. He argues that as one of the largest CO2 emitters in Europe RWE is partly responsible for the climate crisis and therefore, like other major emitters, should pay for damages and risks their business model has caused. The case is ongoing.
Katharina Theil is a senior associate solicitor in the international department.